BEFORE THE

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

------------------------------------------------------------------------

:

UNITED AIRLINES, INC., :

:

Complainant, :

v. : Docket No. FAA-16-14-13

:

THE PORT AUTHORITY OF NEW YORK :

AND NEW JERSEY, :

:

Respondent. :

:

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UNITED AIRLINES, INC.’S STATEMENT OF 

MATERIAL FACTS IN SUPPORT OF ITS ANSWER TO THE

PORT AUTHORITY OF NEW YORK AND NEW JERSEY’S 

MOTION FOR SUMMARY JUDGMENT

Communications with respect to this document should be addressed to:

Marc L. Warren

Keith J. Harrison 

Gerald F. Murphy

Steven J. Seiden

CROWELL & MORING LLP

1001 Pennsylvania Avenue, NW 

Washington, DC 20004

(202) 624-2500

mwarren@crowell.com

Robert S. Span

Alan K. Steinbrecher

Sophy Chen

STEINBRECHER & SPAN LLP

1155 F Street, NW, Suite 1050

Washington, DC 20004

(202) 559-8680

rspan@steinbrecherspan.com

Counsel for United Airlines, Inc.
1

STATEMENT OF MATERIAL FACTS

In support of its Answer to the Motion for Summary Judgment and pursuant 

to 14 C.F.R. § 16.26(c)(3), Complainant United Airlines, Inc. (“United”)1 submits the 

following material facts as to which Complainant contends there is a genuine issue. 

Each fact is followed by a citation to evidence supporting that fact.2

BACKGROUND

1. At EWR, as at JFK, airlines are charged a “Flight Fee,” which is based 

on take-off weight rather than landing weight, for use of the airfield facilities.

Decl. of Gavin Molloy, ¶ 2.

2. Due to fuel burn, landing weight is, on average, approximately 18% 

less than take-off weight. Accordingly, to compare the EWR Flight Fee with the 

more traditional landing fee charged at other airports, it is necessary to multiply 

the EWR Flight Fee by a factor of 1.18.

Decl. of Gavin Molloy, ¶ 3.

3. In 2014, the EWR Flight Fee, including the charge for the AirTrain,

averaged $9.98 per 1,000 pounds of take-off weight, equivalent to a landing fee of 

$11.77.

 

1 The corporate merger that resulted in Continental Airlines, Inc. and United 

Air Lines, Inc. being owned by the then newly-formed United Continental Holdings, 

Inc. took place on October 1, 2010. On March 31, 2013, the merger and integration 

process was completed with the formation of a single legal entity that is now known 

as United Airlines, Inc. References herein to “United” will include Continental 

Airlines, Inc.

2 Because the parties have submitted voluminous evidence, much of which 

supports more than one fact, and to avoid duplication, United will not list all 

evidence supporting each fact.
2

Decl. of Gavin Molloy, ¶ 4.

4. In 2014, projected average landing fees at major US airports were:

AIRPORT 2014 PROJECTED AVERAGE 

LANDING FEE

EWR $11.77*

LGA 9.28

CHICAGO O’HARE (ORD) 7.42

JFK 6.71*

DENVER (DEN) 4.67

BOSTON LOGAN (BOS) 4.60

LOS ANGELES (LAX) 4.54

SAN FRANCISCO (SFO) 4.50

WASHINGTON DULLES (IAD) 3.86

WASHINGTON NATIONAL (DCA) 3.60

PHILADELPHIA (PHL) 3.52

HOUSTON (IAH) 2.99

DALLAS/FORT WORTH (DFW) 2.64

MIAMI (MIA) 1.76

ATLANTA (ATL) 0.82

*EWR and JFK Fees converted to equivalent landing fee by multiplying by 1.18. 

Decl. of Gavin Molloy, ¶ 5.

5. Under the Master Lease, the EWR Flight Fee is comprised of four

components: (1) a Public Aircraft Facilities Charge Factor (the “PAF Charge 

Factor”); (2) an Airport Services Charge Factor (the “ASF”); (3) a Phase 1A Roadway 
3

Charge Factor; and (4) the EWR AirTrain factor. These four factors produce an 

aggregate Flight Fee rate that is assessed for every 1,000 lbs. of maximum take-off 

weight.

Decl. of Gavin Molloy, ¶ 6.

6. The PAF Charge Factor and ASF portions of the EWR Flight Fee 

formula have remained unchanged since 1969.

Decl. of Joseph Garcia, ¶ 12.

7. All signatory airlines at EWR pay Flight Fees based on the same 

formula.

Decl. of Joseph Garcia, ¶ 13.

8. The same formula is used for calculating the EWR Flight Fee for all 

airlines operating at EWR.

Decl. of Joseph Garcia, ¶ 13.

9. The formula was in the lease that Continental Airlines, Inc. 

(“Continental”) assumed when it began operating at EWR in 1987.

Decl. of Joseph Garcia, ¶ 12.

10. United’s attempts to negotiate changes to the formula were repeatedly 

rebuffed by the Port Authority.

Exhibits OO – DDD. 

11. United’s attempts to obtain details of the EWR Flight Fee calculation 

and the revenue surpluses at EWR were repeatedly rebuffed by the Port Authority.

Exhibits OO – DDD. 
4

PORT AUTHORITY

12. In August 2011, the governors of New Jersey and New York ordered 

the Port Authority to obtain a comprehensive review and audit of the entire agency, 

including its finances, operations, and ten-year capital plan.

Exhibit M.

13. In 2012, the primary consultant that undertook this review, Navigant 

Consulting, Inc. (“Navigant”), issued two reports – Phase I Interim Report 

(“Navigant I Report”) and Phase II Report (“Navigant II Report”) – detailing its 

findings.

Exhibits M, N. 

14. According to the Port Authority, the Navigant I Report constituted a 

“thorough assessment of the Port Authority’s current business model, finances, and 

operations” with “corrective recommendations and measures.” 

Exhibit O, p. 1.

15. According to Navigant, the Port Authority “has expanded beyond its 

stated mission as a transportation infrastructure organization and, by fate or 

design, has also become a major real estate developer and asset owner with 

investments that dwarf its past holdings . . . with its own . . . police force numbering 

over 1700 employees.” 

Exhibit M, pp. 7, 15.

16. This expansion, according to the Port Authority’s consultant, has been 

grossly deficient in “planning and execution.”

Exhibit M, p. 7. 
5

17. The Port Authority has seen its net costs for the World Trade Center 

project (“WTC”) balloon from $3.5 billion in 2006 to $7.7 billion in 2012, 

“representing approximately $14.8 billion of total gross costs, less approximately 

$7.1 billion in reimbursements by third parties and [other] funding [sources].” 

Although some of this increase was driven by natural cost growth from the original 

scope of the WTC, most of it was attributable to timing, planning, execution, and 

management related to the Port Authority. 

Exhibit M, pp. 36-43.

18. From 2007 through 2011, the Port Authority generated cash from the 

following: airports (JFK $990 million, LGA $273 million, and EWR $1.3 billion), the 

George Washington Bridge ($1.3 billion), the Lincoln Tunnel ($167 million) and the 

Holland Tunnel ($141 million). During that same period, it sustained losses from 

most of its other assets, including: heliports/Teterboro/Stewart ($65 million loss), 

the Port Authority Bus Terminal ($479 million loss), PATH ($2.3 billion loss), Port 

Newark ($317 million loss), Port Jersey ($184 million loss), Howland Hook ($160 

million loss), Brooklyn Marine Terminal ($27 million loss) and WTC ($3.1 billion 

loss). 

Exhibit N, p. 14. 

19. The Port Authority’s exposure to debt “has more than doubled over the 

past ten years, from approximately $9.1 billion in 2001 to approximately $19.5 

billion at the end of 2011.” 

Exhibit M, p. 7. 
6

20. Navigant recommended that the Port Authority “align its capital 

strategy with its mission and objectives” and “deploy its capital with proper 

attention to preservation of its [transportation] infrastructure.” 

Exhibit M, pp. 7, 17. 

21. According to Navigant, the diversion of revenue from airports is 

causing:

a. a “historical[ ] struggle[ ] to fix [operational and safety] 

violations in a timely manner, primarily as a result of budgetary 

constraints leading to insufficient maintenance staff, and a lack 

of inventory of the necessary parts, such as lights and signs.” 

b. the hampering of “runway safety areas at both ends of every 

runway . . . Ten of the Port Authority airports’ 26 runway ends 

still must be made compliant [with safety regulations].” 

c. “the airports to rank among the worst in the country in terms of 

customer satisfaction. Buildings are nearing obsolescence, 

infrastructure is deteriorating, and maintenance needs are 

mounting.”

Exhibit N, p. 38.

22. Navigant concluded, “Over the past five years, the Aviation line 

department has been the only positive free cash flow contributor to the Port 

Authority but now has some of the largest upcoming capital expenditure needs,” 

which cannot be met due to “budgetary constraints.” 

Exhibit N, pp. 5, 38.
7

23. Approximately 60% of Port Authority employees are in the highest four 

salary band categories (“Service A,” Senior Executive Management, Executive 

Management and Middle Management). 

Exhibit M, p. 28.

24. Navigant concluded that this top-heavy structure means there are too 

many decision makers with a too-limited span of control. As a result, the Port 

Authority “is a challenged and dysfunctional organization” that is “inherently 

resistant to change, lacks effective collaboration between its strategic businesses” 

and “must conduct a meaningful, top-to-bottom organizational redesign focused on 

operating efficiencies and rooted in clearly defined roles and responsibilities, 

transparency, accountability and aligned incentives.”

Exhibit M, p. 5.

UNREASONABLE RATES & CHARGES

25. EWR generates huge surplus revenues, which the Port Authority then 

uses to subsidize its non-aeronautical operations.

Exhibit N, p. 14.

26. In 2014, the Public Airport Facilities component of the EWR Flight Fee

included a mark-up of 38% above actual costs.

Decl. of Robert S. Span, ¶¶ 22-23.

27. In 2014, the ASF component of the EWR Flight Fee included a markup of 14% above actual costs.

Decl. of Robert S. Span, ¶ 24.

28. In the five-year period 2007-2011, EWR gave the Port Authority $1.6 

billion in operating cash flow.
8

Exhibit M, p. 14.

29. The Port Authority staffs ARFF with airport police, trained as 

firefighters, each of whom cost the Port Authority in 2014 an average of $242,000 in 

compensation, overtime, and benefits.

Exhibit L.

30. The Port Authority’s budget for the 2014 ARFF costs included overtime 

expense that totaled 42% of straight-time expense.

Exhibit L.

31. The entire cost of the ARFF at EWR is included in the PAF Factor in 

the EWR rate base.

Exhibit 2 to Garcia Decl.

32. Non-ARFF security costs included in the 2014 EWR Flight Fee total 

more than $37 million. As part of the ASF, these costs were then marked up by 

14% in the EWR Flight Fee calculation.

Exhibit 2 to Garcia Decl.

33. EWR’s operating revenues and profits for 2009 through 2013 were:

2009 2010 2011 2012 2013

Revenue $729,120,000 748,973,000 772,987,000 780,081,000 799,553,000

Operating 

Profit 

214,555,000 218,009,000 245,619,000 241,672,000 239,923,000

Operating 

Margin

29% 29% 32% 31% 31%

Decl. of Gavin Molloy, ¶ 7.
9

34. In contrast, while JFK and LGA showed operating profits as well, the 

levels were much lower:

2009 2010 2011 2012 2013

JFK Operating 

Margin

20% 23% 22% 23% 22%

LGA Operating 

Margin

15% 15% 15% 13% 8%

Decl. of Gavin Molloy, ¶ 8.

35. A document created by the Port Authority in July 2013 states that the 

ARFF charges at EWR would be “recoverable at 130 percent” from the airlines. 

Exhibit L, p. 1.

36. In fact, however, the ARFF charges at EWR are recovered at 138 

percent from the airlines through the EWR Flight Fee.

Decl. of Robert S. Span, ¶¶ 22, 23.

37. The average base salaries of Port Authority employees “are among the 

highest relative to peer group”; the total cost of compensation and benefits for the 

average Port Authority employee is estimated to exceed $143,000 annually. “Addon” compensation, such as pay based on overtime, vacation exchanges, and 

longevity programs, constituted an exorbitant 70% of base salaries.

Exhibit M, p. 23. 

38. The Navigant I Report found that the average salary in the Port 

Authority’s Aviation Department was highest among its peer group of major 

airports in the country.
10

Exhibit M, p. 25.

39. Data made public by the Port Authority reveal that the seven highestpaid employees in the Aviation Department in 2013 were non-exempt workers 

whose total compensation was 209% of their base pay.

www.PANYNJ.gov/corporate-information/employee-payroll-information2013.cfm.

40. Average pay levels for Port Authority employees greatly exceed market 

rates, even in the expensive New York metropolitan area.

Exhibit GG.

41. In 2006, the Port Authority paid an international management 

consultant $435,000 to evaluate police staffing practices that had led to a 12% jump 

over the prior year’s already excessive police overtime costs.

Exhibit T.

42. The consultant concluded that the absence of any overtime cap, 

“archaic” record-keeping and “lenient” sick time and disciplinary policies were the 

cause of overtime excesses and required aggressive correction. 

Exhibit T. 

43. In 2007, police overtime costs increased by another 14%, with the 

average officer logging in more than 500 hours of overtime.

Exhibit T. 

44. In 2009, the Office of the New York State Comptroller initiated a 

multiple-year audit of the Port Authority. The audit results, issued in August 2011, 

found that (a) the Port Authority’s overtime costs as a percentage of base salaries 

was actually double its self-declared benchmark of 15%; (b) the Port Authority’s 
11

2010 budget goal of reducing overtime “was not communicated or implemented 

within the Authority”; and (c) there was “no documented justification explaining 

why the work performed on an overtime basis [by Port Authority police] could not 

have been performed during the employees’ regularly scheduled work hours.”

Exhibit U, pp. 8, 17.

45. The New York State Comptroller found that Port Authority 

mismanagement was responsible for excessive overtime costs and recommended 

that “Authority officials . . . take a much more proactive approach to the 

management and control of overtime.”

Exhibit U, pp. 8, 17.

46. In response, the Port Authority stated that it had “taken a number of 

actions to further enhance controls over the use and management of overtime across 

the agency.” 

Exhibit V, p. 1.

47. Navigant similarly reported overtime mismanagement at the Port 

Authority and recommended that the Port Authority make “overtime reduction . . . 

[its] policy focus.” 

Exhibit M, p. 29.

48. Since 2012, the Port Authority’s overtime costs have continued to 

skyrocket to even higher levels. 

Exhibits W, X, Y.

49. In 2014, the Port Authority implemented a new ARFF cadre. The Port 

Authority plans to maintain the same number of police officers who were providing 
12

both police and firefighting services prior to the implementation of the new ARFF 

cadre and add 280 dedicated firefighting policemen to the payroll.

Exhibit L.

50. The Port Authority’s plan to hire existing Port Authority Police 

Department members for the ARFF cadre rather than hire new employees at lower 

compensation rates greatly increases the cost of the ARFF cadre.

Exhibit L.

51. The ARFF cadre is staffed with Port Authority Police who are paid 

even higher than their colleagues performing police duties. Their mean total 

compensation in 2013 was $153,000 vs. $133,000 for the other Port Authority 

officers.

Exhibit GG, ¶ 20.

52. The Port Authority’s compensation and benefit package for the ARFF 

staffers is higher than market. The ARFF staffers are paid significantly more than 

New York metropolitan area firefighters. They are paid 40% more than FDNY 

firefighters and up to 70% more than other New York metropolitan area 

firefighters. 

Exhibit GG, ¶¶ 19-22.

53. All labor costs for the ARFF at EWR are included in the PAF Factor in 

the EWR Flight Fee.

Exhibit 2 to the Decl. of Joseph Garcia.

54. By agreement between the FAA and the Port Authority, the new 

“ARFF Cadre Firefighters will perform only ARFF duties and no collateral duties as 

Police Officers.” 
13

Exhibit FF.

55. By agreement between the FAA and the Port Authority, the new ARFF 

cadre officers are prohibited from performing non-ARFF duties, including police 

duties, and may not perform overtime for police duties or any non-ARFF function.

Exhibit FF.

56. The Port Authority will continue to cross-train police officers for both

firefighting and police duties, paying mandatory overtime for this additional 

training, regardless of the duty to which the officer is assigned. No other major 

airport structures its ARFF function in this manner.

Decl. of Gavin Molloy, ¶ 9.

57. The Port Authority’s staffing plan for the ARFF cadre increased the 

airlines’ costs at the New York area airports by $58 million in 2014, a 272% 

increase in one year. 

Exhibit L. 

58. 41% of the total of the new ARFF costs is allocated to EWR, compared 

to 33% at JFK.

Exhibit L.

59. The increase in ARFF costs from the 2012 actual to the 2014 budgeted 

ARFF is 137% at JFK and 237% at LGA, and 510% at EWR. 

Exhibit L. 

60. The Port Authority did not consult with United before deciding on how 

to implement the changes to the ARFF in 2013.

Decl. of Gavin Molloy, ¶ 10. 
14

61. The EWR Flight Fee includes a cost component related to police and 

traffic functions at the airports other than terminal security and emergency 

services, such as the ARFF.

Decl. of Gavin Molloy, ¶ 11.

62. Since 2010, this cost item has increased by more than 40%, from 

approximately $27 million to approximately $38 million in 2014. Further, due to 

the mark-up contained in the EWR Flight Fee formula, these police costs generated 

an additional $3.8 million in revenue for the Port Authority at EWR in 2013.

Decl. of Gavin Molloy, ¶ 12.

63. Port Authority police logged 384,000 hours more overtime than 

budgeted in 2013.

Exhibit W.

64. 187 Port Authority police officers and supervisors earned more than 

$200,000 in wages in 2013, often doubling their base salaries through overtime and 

other compensation. 

Port Authority of New York & New Jersey, Employee Payroll Information –

As of March 31, 2014, available at www.PANYNJ.gov/corporateinformation/employee-payroll-information-2013.cfm.

65. Eight members of the force made more than $300,000 in wages, 

including one officer who earned about $331,000, including almost $215,000 in 

overtime, making him the highest-paid Port Authority employee.

Port Authority of New York & New Jersey, Employee Payroll Information –

As of March 31, 2014, available at www.PANYNJ.gov/corporateinformation/employee-payroll-information-2013.cfm.
15

66. Port Authority Police are paid significantly more than NYPD officers. 

Including overtime, mean annual total compensation for Port Authority officers in 

2013 was $124,000 vs. $83,000 for NYPD – 49% higher. For sergeants, the Port 

Authority mean compensation was 57% higher. Port Authority Police are also paid 

significantly more than police in the New York metropolitan area (including 

northern New Jersey). In 2013, Port Authority officers received 65% more pay, 

while sergeants were paid 76% more.

Exhibit GG, ¶ 18.

67. At EWR, United is charged for terminal police on the basis of a cost per 

“tour.” At Terminal C, which is occupied exclusively by United, there are five police 

tours per day. At Terminal A, where United operates along with other airlines, 

there are three police tours per day.

Decl. of Gavin Molloy, ¶ 13. 

68. Since 2010, the average annual cost per tour charged by the Port 

Authority at EWR has increased by more than 120%. This increase is a result of 

the Port Authority’s above-market wages, benefits, and overtime.

Decl. of Gavin Molloy, ¶ 14; Exhibit GG. 

69. The Citizens Budget Commission concluded that compared to officers 

in Jersey City, New York City, and Newark, Port Authority officers’ base pay is 17% 

to 29% more at two years of service, 22% to 52% more at six years, and 21% to 28% 

more at twenty-five years. 

Exhibit HH, pp. 12-15.

70. The Citizens Budget Commission further concluded that the hourly 

pay of Port Authority police officers is anywhere between 23% and 215% higher 
16

than that of similarly situated federal agents at the Bureau of Alcohol, Tobacco, 

Firearms and Explosives.

Exhibit HH, pp. 24-27. 

71. The Citizens Budget Commission concluded that Port Authority police 

compensation is excessive and should be closer “to the pay received by officers in 

other large urban departments in the region.”

Exhibit HH, p. 28. 

72. Compensation paid to employees in the Port Authority Aviation 

Department is well over market. Most job titles receive median pay ranging from 

50% to 160% more than comparable workers in the New York metropolitan area. 

Exhibit GG, ¶¶ 23-24.

73. On July 19, 2013, after the Port Authority announced the huge 

increase in ARFF fees for EWR, JFK, and LGA, United and the other airlines wrote 

to the Port Authority, expressing concern at the 284% fee increase and 

disappointment that the Port Authority’s Aviation Department staff was 

purportedly not “authorized” to provide the detailed back-up information the 

airlines had requested. 

Exhibit JJ.

74. On September 10, 2013, United wrote to the Port Authority, protesting 

the ARFF fee increase and again requesting information upon which to base a 

determination whether or not the increase was reasonable. 

Exhibit KK.

75. United never agreed – in writing or otherwise – to the ARFF charges.

Decl. of Gavin Molloy, ¶ 15; Exhibits KK and LL.
17

76. United never agreed – in writing or otherwise – to the unreasonable 

security and administrative costs described in the Complaint.

Decl. of Gavin Molloy, ¶ 16; Exhibits KK and LL.

UNJUST DISCRIMINATION

77. In 2014, the Port Authority charged higher Flight Fees at EWR than it 

did at JFK and LGA.

Decl. of Gavin Molloy, ¶ 17.

78. The Port Authority’s cost per enplanement is higher at JFK than at 

EWR.

Exhibit EE.

79. In 2014, the difference between the Flight Fee at EWR and the Flight 

Fee at JFK meant that United paid more than $80 million more in flight fees than 

it would have paid if it flew its EWR schedule at JFK. (United’s total take-off 

weight at EWR in 2014 multiplied by the difference between the EWR and JFK 

rates.)

Decl. of Gavin Molloy, ¶ 18.

80. If the Flight Fee methodology currently used at JFK were to be used at 

EWR, the airlines operating at EWR would pay a total of $52 million less annually 

than they currently pay.

Decl. of Gavin Molloy, ¶ 19.

81. The Port Authority’s imposition of a higher Flight Fee at EWR than at 

JFK and LGA puts United at a significant competitive disadvantage. United has 

approximately 135,000 scheduled departures from EWR annually, in contrast to its 

12,500 scheduled flights from LGA and its 5,500 scheduled flights from JFK.
18

Decl. of Gavin Molloy, ¶ 20. 

82. Because JFK, LGA, and EWR are “slot-constrained” airports operating 

at full capacity throughout most of the day, it would not be possible for United to 

secure sufficient slots at either JFK or LGA to relocate its hub from EWR in order 

to take advantage of the lower landing fees at those airports.

Exhibit EE, ¶ 29. 

83. Likewise, there are no other airports in the New York metropolitan

area that have the capacity (i.e., terminals, gate facilities, and runway length) to 

accommodate the hubbing operations of a large network carrier such as United.

Exhibit EE, ¶ 29. 

84. For a typical domestic flight operated using a 737-800 aircraft, the 

landing fee per enplaned passenger at EWR is 75% higher than at JFK and 21% 

higher than at LGA.

Exhibit EE, ¶ 29.

85. Because United has no practical alternative to EWR for its hub in the 

New York metropolitan area, it has no choice but to pay the excessive fees the Port 

Authority charges for access to EWR, even though these fees put United at a 

disadvantage vis-à-vis other carriers – particularly Delta, American, and JetBlue –

that are competing for many of the same passengers via their hubs at JFK and/or 

LGA.

Exhibit EE, ¶ 29. 

86. As a further example, for a typical long-haul international flight 

operated using a 777-200 aircraft, the landing fee per enplaned passenger at EWR 

is 75% higher than at JFK. This puts United at a competitive disadvantage vis-à-
19

vis Delta and American, and a variety of foreign carriers that use JFK as the base 

of their long-haul international services to/from the New York metropolitan area.

Exhibit EE, ¶ 31.

87. Delta, American, and JetBlue each operate hubs at New York

metropolitan area airports with lower costs than EWR.

Exhibit EE, ¶ 32.

88. There are more than 100 destinations worldwide that United serves 

from the New York metropolitan area exclusively from EWR in competition with 

U.S. carriers serving the same destinations from JFK and/or LGA.

Exhibit EE, ¶ 32.

89. Any cost disadvantage United confronts because it operates its New 

York metropolitan area hub at EWR is magnified for passengers making 

connections, since for each round-trip passenger United connects via EWR, United 

is effectively required to pay the Port Authority’s landing fees per passenger twice 

(once on their outbound flight and again when they return to their destination).

Exhibit EE, ¶ 33.

90. United competes with both American and Delta (as well as a host of 

foreign carriers) for many of the same international connecting passengers that use 

the New York metropolitan area (i.e., EWR or JFK) as their connecting gateway.

Exhibit EE, ¶ 33. 

91. For example, a substantial proportion (26% overall) of all transoceanic 

international connecting passengers originating from or destined to points in the 

eastern United States use either EWR or JFK as their international gateway.

Exhibit EE, ¶ 34.
20

92. Because United (via EWR) competes directly with American and Delta 

(via JFK) for many of the same transoceanic connecting passengers that use a New 

York metropolitan airport as their connecting point, the higher costs at EWR vis-àvis JFK (which are magnified for connecting passengers as mentioned above) put 

United at a further competitive disadvantage.

Exhibit EE, ¶ 34.

93. The increased ARFF costs for EWR for 2014 are over $33 million. 

United’s share of the ARFF costs for 2014 is nearly $25 million, while Delta’s share 

is $7 million, American’s $5 million, and JetBlue’s $3 million.

Exhibit KK.

94. Air carriers operating out of JFK and LGA, on the one hand, are 

making similar use of the New York area airport system as those air carriers 

operating out of EWR, on the other hand.

Decl. of Gavin Molloy, ¶ 21.

REVENUE DIVERSION

95. The Port Authority currently plans to spend $1.8 billion over a tenyear period to improve roads and bridges it does not own or operate.

Exhibit A, p.13.

96. In 2014 alone, the Port Authority spent $181 million to repair the 

Pulaski Skyway and $60 million on the Wittpenn Bridge, structures owned and 

operated by the State of New Jersey.

Exhibit A, p. 106.

97. Net income from EWR helps pay for those Port Authority facilities that 

operate at a loss. 
21

Exhibit A, p. 10. 

98. In the six year period 2005-2010, the Port Authority diverted a total of 

more than $1.7 billion in airport revenues to non-airport uses, an average of almost 

$300 million annually. 

Exhibit B, p. 4. 

99. This total was almost ten times higher than the amounts diverted by 

SFO and ORD, the grandfathered airports with the next highest totals.

Exhibit B, p. 4.

100. A recent press release from the Port Authority reveals that it has 

allocated $1.8 billion for the 2011-2021 period for the “Lincoln Tunnel Access 

Program,” which consists of “the rehabilitation of the Pulaski Skyway, the Wittpenn 

Bridge and the Routes 1 and 9 truck route connecting Tonnelle Circle in Jersey City 

to Interstate 495.” 

Exhibit C, p. 2; Exhibit D, p. II-54.

101. None of the facilities involved in the “Lincoln Tunnel Access Program,” 

is actually owned or operated by the Port Authority. 

Exhibit A, p. 74. 

102. The Pulaski Skyway is a roadway consisting of a bridge and causeway 

that connects Jersey City and Newark (near the Holland Tunnel, not the Lincoln 

Tunnel) and is owned and operated by the State of New Jersey. 

Exhibit E.

103. The Wittpenn Bridge and Routes 1 and 9 also fall within the ambit of 

the New Jersey Department of Transportation. 

Exhibits F-H.
22

104. The Port Authority’s own in-house counsel noted in an internal 

memorandum that the Port Authority lacks authority to build or repair access roads 

to the Holland Tunnel. 

Exhibit I, p. 2.

105. As of December 31, 2013, the Port Authority had already spent $121 

million on the Lincoln Tunnel Access Program. 

Exhibit D, p. II-54.

106. The Port Authority has expended tens of millions of dollars in recent 

years on the New Brunswick Civic Center, the Stevens Institute of Technology (a 

private college in Hoboken), the Jersey City Medical Center and Independence 

Park, a Newark space run by Essex County, New Jersey, and other regional 

projects. These facilities are neither owned nor operated by the Port Authority.

Exhibit K.

107. The Port Authority spent an additional $48 million on regional projects 

in 2014. 

Exhibit A, p.11.

108. According to Steven Berger, the Port Authority’s former executive 

director, “[t]he Port Authority has been a money tree, an ATM machine . . . a place 

[the governors of New York and New Jersey] can go to do projects that they can’t get 

through their budgets.” 

Exhibit R.

109. In the five year period 2007-2011, EWR gave the Port Authority $1.6 

billion in operating cash flow. 

Exhibit M, p. 14.
23

PORT AUTHORITY MONOPOLY POWER

110. The Port Authority has monopoly power with respect to the airports in 

the New York metropolitan area, the most important market in the United States.

Exhibit EE, ¶¶ 8-9.

111. The New York metropolitan area is the largest airline market in the 

United States, both for domestic and international travel. 

Exhibit EE, ¶¶ 8-9. 

112. In 2013, over 61 million domestic passengers traveled to or from the 

New York metropolitan area, approximately 50% more than Los Angeles, the second 

largest domestic airline market in the United States.

Exhibit EE, ¶¶ 8-9.

113. In terms of airline revenue, the New York metropolitan area accounted 

for approximately $13.3 billion – 55% more than second-ranked Los Angeles – and 

7.2% of all domestic origin and destination revenue nationwide in 2013.

Exhibit EE, ¶¶ 8-9.

114. For international air travel, the New York metropolitan area is the 

largest market in the United States by an even wider margin. The New York 

metropolitan area accounted for over 13.7 million international passengers in 2013 

(approximately twice that of Miami, the second largest market for international 

passenger traffic).

Exhibit EE, ¶¶ 8-9.

115. In terms of origin and destination airline revenue, international travel 

to and from the New York metropolitan area accounted for $7.2 billion in 2013 – as 
24

much as San Francisco, Los Angeles and Chicago combined – and approximately 

15% of all U.S. carrier international revenues.

Exhibit EE, ¶¶ 8-9.

116. The Port Authority operates the three major New York metropolitan

area airports – EWR, JFK and LGA – plus Stewart International Airport. The Port 

Authority-controlled airports account for over 96% of all air travel to or from the 

New York metropolitan area.

Exhibit EE, ¶ 17.

117. EWR, JFK, and LGA compete for the same New York metropolitan air 

travelers.

Exhibit EE, ¶ 15. 

118. There is no realistic possibility that a fourth major airport will open in 

the New York metropolitan area to compete with EWR, LGA and JFK.

119. The market for commercial airport services in general, and in the New 

York metropolitan area in particular, is characterized by exceptionally high barriers 

to entry. 

Exhibit EE, ¶¶ 11-12. 

120. The Flight Fee charged at EWR is far higher than the fees charged at 

other non-New York airports. The Flight Fee for a Boeing 737-800 at EWR, for 

example, is more than double the Flight Fee at comparably-sized airports in other 

cities such as San Francisco International (“SFO”) or Boston Logan International 

(“BOS”).

Exhibit EE, ¶ 20.